Christine Clark v Oracle Financial Planning Pty Ltd T/A Oracle

[2017] FWC 4285

[2017] FWC 4285

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christine Clark
v
Oracle Financial Planning Pty Ltd T/A Oracle
(U2016/15146)

COMMISSIONER WILSON MELBOURNE, 17 AUGUST 2017

Application for an unfair dismissal remedy.

[1] On 19 December 2016, Ms Christine Clark made an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). That application was assigned matter number U2016/15164, and disclosed the Respondent to be Oracle Financial Planning Pty Ltd T/A Oracle.

[2] A conciliation conference was held before a Fair Work Commission conciliator on 4 May 2017, where Commission records indicate draft terms of settlement were discussed. On 9 May 2017 the Respondent provided to the Commission signed terms of settled from both Ms Clark and Oracle on confidential terms.

[3] On 1 August 2017, my Chambers issued written correspondence to the Applicant requesting a Form F50 be provided in order to discontinue the matter in accordance with s.587 of the Act, together with the Full Bench decision of Curtis v Darwin City Council 1, a decision which referred to the decision of the Federal Court in Australian Postal Corporation v Gorman2, being authority for the proposition that a binding settlement between parties to an unfair dismissal application may preclude the furtherance of the application for reason of it not having reasonable prospects of success. That correspondence sought a notice of discontinuance be provided by close of business Friday, 4 August 2017. No notice of discontinuance however, was forthcoming.

[4] Having regard to the material before me, I find that there is, in existence, a binding agreement to settle Ms Clark’s application. There is nothing before me to suggest that the agreement reached in that conciliation was not binding on the parties.

[5] Section 587(1) of the Act provides as follows:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

[6] In Australia Postal Corporation v Gorman, Besanko J held that the existence of a binding settlement or “accord and satisfaction” extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement. 3 His Honour stated;

“33 There is nothing in the Act which suggests that an accord and satisfaction should not be recognised. At a general level the object of Chapter 3 Part 3-2 and the general statements of the manner in which FWA is to perform its functions and the matters to which it is to have regard are consistent with the recognition of an accord and satisfaction. Furthermore, the words of subsection 587(1) are wide enough to include the recognition of an accord and satisfaction. As I have said, a valid and effective accord and satisfaction extinguishes the pre-existing cause of action and continued pursuit of an application based on such cause of action is clearly capable of being considered to be frivolous or vexatious or without reasonable prospects of success.” 4

[7] I am satisfied that in the circumstances where there is a binding agreement between the parties, and in the absence of any material to the contrary, I should exercise my power under s.587(1)(c) of the Act to dismiss Ms Clark’s application. An order to this effect will be issued in conjunction with this decision.

COMMISSIONER

 1   [2012] FWAFB 8021.

 2 [2011] FCA 975.

 3 Ibid at [31].

 4 Ibid at [33].

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